[Congressional Record (Bound Edition), Volume 151 (2005), Part 15]
[Senate]
[Pages 20635-20640]
[From the U.S. Government Publishing Office, www.gpo.gov]




                NOMINATION OF JUDGE JOHN G. ROBERTS, JR.

  Mr. SPECTER. Mr. President, I have sought recognition to speak about 
the confirmation of Judge John G. Roberts, Jr., to be Chief Justice of 
the United States.
  Mr. President, no vote cast by a Senator in this body is more 
important than a vote cast on the confirmation of a Supreme Court 
Justice, with the exception of a declaration of war, or a resolution 
authorizing the use of force.
  The confirmation process for Chief Justice is obviously somewhat more 
important than that for Associate Justice. It is even more important in 
the context of Judge Roberts who is 50 years old and has the potential 
to serve for decades in that very key position, as the second youngest 
Chief Justice in the history of the country and the 17th Chief Justice 
in our Nation's history.
  Judge Roberts comes to this position with an extraordinary academic 
record--3-year graduate of Harvard College summa cum laude, magna cum 
laude in the Harvard Law School, and an illustrious career in private 
practice and government service. He argued some 39 cases before the 
Supreme Court of the United States.
  We have examined some 76,000 documents. We have looked at his 
participation in some 327 cases in the Court of Appeals for the 
District of Columbia Circuit, where he was confirmed by the Senate 2 
years ago by unanimous consent. We have seen his briefs in the 
Solicitor General's Office, and we have heard some 31 witnesses 
regarding his nomination. These included a witness from the American 
Bar Association, which rated him unanimously well qualified, the 
highest recommendation possible. The remaining thirty witnesses, who 
were chosen equally by the Democrats and the Republicans, testified at 
length about Judge Roberts' career. We know a great deal about Judge 
Roberts.
  Based on all of these proceedings, including 17 hours of testimony 
before the committee, it is my judgment he is well qualified to be 
Chief Justice of the United States. I intend to vote aye when his 
nomination is called before the Senate.
  He has taken a position that a judge should be modest and should look 
for stability in the law. On a number of occasions in his testimony 
before the committee, he emphasized the point that judges are not 
politicians and that judges ought not inject their own personal views 
into the law.
  He commented about the flexibility of the law, saying that principles 
such as equal protection and due process were meant to last through the 
ages and have a flexible quality. He said, ``They [referring to the 
framers] were crafting a document that they intended to apply in a 
meaningful way down through the ages.''
  While he would not accept the specific language of Justice John 
Marshall Harlan II that the Constitution is a living thing, he did 
testify that the language of liberty and due process has broad meaning 
as applied to evolving societal conditions.
  He talked very directly when questioned about the right of privacy. 
He said that Griswold v. Connecticut, which established the right of 
privacy, was correctly decided. That case overturned the state law 
prohibiting the use of contraceptives for married people. He also said 
the holding of Griswold would apply to single people as well as to 
married people under the Eisenstadt decision.
  When it came to the critical question of Roe v. Wade, I did not ask 
him whether he would affirm or reject the Roe doctrine. I did not do so 
because I believe it is inappropriate to ask a nominee how he would 
decide a specific case.
  As chairman, it was my view that any member could ask the nominee any 
question that the member chose to, and the nominee would be free to 
respond as he chose. Beyond refraining from specifically asking whether 
he would affirm or overrule Roe v. Wade, others and I questioned him 
extensively about the import of stare decisis, the Latin term meaning 
``let the decision stand.'' He emphasized that stare decisis was a very 
important principle in the law and that even where a justice might 
consider Roe wrongly decided, it takes more to overturn a precedent 
than simply to conclude it was wrongly decided initially. Because--and 
this is Arlen Specter speaking, not Judge Roberts--where the case has 
stood for some 32 years and has been reaffirmed most emphatically in 
Casey v. Planned Parenthood, it has become, as some have called it, a 
super precedent.
  I then made the point that the Supreme Court had taken up the issue 
so that Roe could have been reversed, overruled on some 38 occasions. 
Should it come before the Court again, perhaps the balance of the 38 
cases would make super-duper precedent to uphold Roe.
  The question remains as to how he will rule. Nobody knows that for 
certain.
  The one rule that seems to be the most prevalent one is the one of 
surprise. He testified extensively about his concern for civil rights. 
He talked about affirmative action. He agreed with Justice O'Connor 
that the impact of the people in the practical everyday world was of 
considerable importance. I questioned him about his participation in 
the case of Romer v. Evans, where he lent some counsel to the lawyers 
who were arguing the case involving gay rights and he participated in 
support of gay rights.
  His partner at Hogan and Hartson, Walter Smith, had this to say about 
Judge Roberts' participation in that case. Mr. Smith said that ``every 
good lawyer knows that if there is something in his client's cause that 
so personally offends you morally, ligiously, or if it so offends you 
that you think it would undermine your ability to do your duty as a 
lawyer, then you shouldn't take it on, and John wouldn't have. So at a 
minimum he had no concerns that would rise to that level.''
  I then asked Judge Roberts if he agreed with Mr. Smith's analysis and 
if he would have refrained from helping in that situation, and he said: 
``I think it's right that if it had been something morally 
objectionable, I suppose I would have.''
  His support of gay rights is not an insignificant consideration in 
our evaluation of his views of civil rights.
  Judge Roberts made quite a point of contending that he had answered 
more questions than most, and I think to some extent he did. He 
articulated the standard that he would answer the questions unless the 
case was likely to come before the Court. Some of his predecessors have 
refused to answer any questions at all.
  As I have said, from time to time, when Justice Scalia appeared 
before the Judiciary Committee, he wouldn't answer much. Even prisoners 
of war are compelled to give their name, rank, and serial number; Judge 
Scalia would only give his name and rank. He wouldn't give his serial 
number. I say that in a metaphor. Justice Scalia would not say if he 
would uphold Marbury v. Madison, which is an 1803 decision establishing 
the supremacy of the Supreme Court, the duty of the Supreme Court, and 
the responsibility

[[Page 20636]]

and authority of the Court to interpret the Constitution.
  Judge Roberts did comment on Griswold and Eisenstadt and quite a 
number of specific cases as he went along. There were some cases where 
he would not answer where I candidly thought he should have answered, 
but my rule is that the Senator asks the questions, the nominee 
responds, and it is a political judgment as to whether the nominee has 
responded sufficiently to warrant or merit confirmation or the 
Senator's vote.
  For some time now, I have expressed my concern, a concern which was 
shared by the distinguished Senator from Ohio, Senator DeWine, who now 
occupies the chair of the Presiding Officer. Senator DeWine raised a 
line of questions, as I did. I raised a question about the case of 
United States v. Morrison where the Supreme Court declared part of the 
legislation unconstitutional, legislation designed to protect women 
against violence. I pointed to the very extensive record on surveys in 
21 days and 8 separate reports. The Court, in a 5-to-4 decision, 
determined that the legislative record was insufficient, but it seemed 
to me that it was probably the case that the record was more than 
sufficient. This is what I consider to be an encroachment on 
congressional authority. The majority opinion, after reviewing that 
record, said it was insufficient because they disagreed with the 
congressional ``method of reasoning.''
  The question I have about that is, Who are they--the Supreme Court 
Justices--to say that their ``method of reasoning,'' is superior to 
ours? What happens when you leave the columns of the Senate, which are 
directly aligned with the columns of the Supreme Court, and walk across 
the green? Is there some superiority of competency there? The dissent 
pointed out that the majority opinion was saying that there was some 
sort of unique judicial competence on the method of reasoning. The 
inference there is that there is some congressional incompetence. I 
reject that. And I believe the Constitutional separation of powers 
rejects that.
  Where there is an expansive record, as we had in United States v. 
Morrison, it ought to have been upheld. It is a derogation of 
congressional authority and insulting to question our method of 
reasoning.
  I asked him about the two cases where the Supreme Court interpreted 
the Americans With Disabilities Act 3 years apart, 2001 and 2004. In 
Garrett v. Alabama, by a 5-to-4 decision, the Court ruled 
unconstitutional the part of the Americans with Disabilities Act which 
protected against discrimination in employment; and then, 3 years 
later, in Tennessee v. Lane, again by a 5-to-4 vote, the Supreme Court 
upheld the application of the section of the Americans With 
Disabilities Act concerning access to public accommodations for a 
paraplegic who had to crawl up the steps to get to a courtroom. The 
records were identical as to both of the sections in the same act. You 
had the same voluminous record presented.
  In dissent, in the Lane case, Justice Scalia called it a ``flabby 
test.'' He said that where the Court has used a standard of what they 
called ``congruence and proportionality,'' that it was ill-advised. 
Justice Scalia said the Court was really making itself the taskmaster 
of the Congress and, in effect, treating us like schoolchildren.
  Now, where did this test, ``congruence and proportionality,'' come 
from? It came out of thin air. In 1997, in the Boerne case where the 
Court declared the Religious Restoration Act unconstitutional, they 
came up with this test which has not a scintilla of objective meaning. 
How can the Congress figure out what it is that the Supreme Court has 
in mind? They go 5 to 4 on one title of the Americans with Disabilities 
Act and 5 to 4 the other way on another title of the Americans with 
Disabilities Act. Frankly, I thought the committee and the Senate were 
entitled to answers on those questions, but Judge Roberts declined to 
answer.
  That is a work in process. We are not putting that one down. There 
are some things which the Congress can do about that to assert 
congressional power, and it will be pursued.
  On the issue of Judge Roberts being Chief Justice, it is an 
intriguing prospect for a man of 50 to take over the Court where Judge 
Stevens is 35 years his senior; Justice Scalia is 18 years his senior; 
even Justice Thomas, the youngest of those on the Court at the moment, 
is 7 years his senior. I asked Judge Roberts about that, both in the 
informal session in my office and in the Senate hearing. He described 
his work as being an advocate before the Court as a ``dialogue among 
equals.'' I thought that was a fascinating evaluation.
  In the Supreme Court--and I have had occasion to be there three 
times--a lawyer stands on one level, and the Court is on a higher 
level. I do not exactly perceive it personally as a dialogue among 
equals, but I consider it fascinating that he did. Perhaps when you 
have been there 39 times, the level of inequality levels out. But he 
has an opportunity, from his vantage point, knowing the Justices, as he 
does, having been there so long, and having been a clerk for Justice 
Rehnquist when he was an Associate Justice back in 1980, to do 
something about these 5-to-4 decisions.
  There was a discussion about what Chief Justice Earl Warren did in 
bringing the Court together. When he was appointed Chief Justice in 
1953, he molded a unanimous opinion in Brown v. Board of Education--if 
not the most important case in the Court's history certainly one of the 
most important cases, and one of the most contentious cases.
  However today we see a plethora of 5-to-4 decisions--a recent case 
involving the Americans with Disabilities Act being one illustration, 
but there are many others; you had the Ten Commandments cases this year 
where the Court said it was OK for the State of Texas to have the Ten 
Commandments on a tower but unconstitutional for Kentucky to display 
the Ten Commandments indoors, in two decisions whose results absolutely 
defy logic or are inexplicable.
  I have also been troubled by the modern tendency to have so many 
concurrences and dissents. Before the Judiciary Committee held hearings 
regarding the detainees at Guantanamo Bay, I read three Supreme Court 
opinions from June of 2004. They were a maze of confusion as you tried 
to work your way through them. One was a plurality opinion. Only four 
Justices could agree. They did not have the opinion of the Court, and 
the other cases were replete with multiple opinions as well.
  Currently you have a situation where Justice A will write a 
concurring opinion, joined by Justice B; and then Justice B will write 
a concurring opinion, joined by Justice A and Justice C. You wonder, 
why so many opinions? Judge Roberts commented and testified he thought 
that was a matter the entire Court should work on, and certainly one he 
would pledge to work on himself.
  The subtle ``minuet'' of the confirmation hearings for Judge Roberts 
turned bombastic and contentious at times, but he always kept his cool 
and responded within reasonable parameters. The Judiciary Committee and 
the full Senate cannot be guarantors that Judge Roberts will fulfill 
our's or anyone's expectations. The Court's history is full of Justices 
who have surprised or disappointed their appointers or inquisitors. But 
the process has been full, fair, and dignified.
  I think Judge Roberts went about as far as he could go in answering 
the questions and declining to answer questions on cases likely to come 
before the Supreme Court. When you consider all of the factors--his 
academic record, his professional record, his record on the court of 
appeals, the witnesses who testified who have known him intimately--it 
is my judgment he is well qualified and should be confirmed as the next 
Chief Justice of the United States, the 17th Chief Justice of the 
United States. When the roll is called, I intend to vote yea.
  I ask unanimous consent that the full text of my statement be 
included in the Record.
  The PRESIDENT pro tempore. Without objection, it is so ordered.

[[Page 20637]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Floor Statement of Senator Arlen Specter on the Nomination of Judge 
         John Roberts To Be Chief Justice of the United States

       After listening to Judge John Roberts testify for nearly 17 
     hours and then hearing from 31 witnesses, some for and some 
     against his nomination, I have decided to vote to confirm him 
     to be Chief Justice of the United States.
       Except for a declaration of war or its virtual equivalent, 
     a resolution for the use of force, no Senate vote is more 
     important than the confirmation of a Supreme Court justice; 
     and this vote has special significance because it is for 
     Chief Justice and the nominee is only 50 years old with the 
     obvious potential to serve for decades.
       Judge Roberts comes to the committee with impeccable 
     credentials. He was graduated summa cum laude from Harvard 
     College in only 3 years, and magna cum laude from the Harvard 
     Law School. Following his graduation from law school, Roberts 
     obtained prestigious clerkships with Judge Henry Friendly of 
     the U.S. Court of Appeals for the Second Circuit and then 
     Associate Justice William H. Rehnquist.
       Judge Roberts subsequently embarked on a distinguished 
     career in public service, serving as an Associate White House 
     Counsel in the Reagan administration and Principal Deputy 
     Solicitor General in the George H.W. Bush administration. 
     While in the Solicitor General's Office and then in private 
     practice with the firm of Hogan & Hartson, Judge Roberts 
     argued 39 cases before the U.S. Supreme Court, earning a 
     reputation as one of the finest appellate advocates in the 
     Nation.
       When Judge Roberts was appointed to his current position on 
     the U.S. Court of Appeals for the D.C. Circuit, he earned the 
     highest rating from the American Bar Association and enjoyed 
     broad bipartisan support in being confirmed by unanimous 
     consent.
       A threshold question, beyond his academic and professional 
     qualifications is how a man at 50 from outside the Court can 
     effectively function as Chief Justice. His previous clerkship 
     on the Court and the 39 cases he has argued there give him an 
     intimacy with the Court that few outsiders enjoy. He knows 
     the Court and the other Justices know him. Concerned about 
     his relative youth, I questioned Judge Roberts about how he 
     would feel becoming Chief Justice of a Court where one member 
     was 35 years his senior, and the next youngest, still some 7 
     years older. Judge Roberts' answer impressed me. He said 
     that, while in private practice, he approached his arguments 
     before the Court as a ``dialogue of equals.'' When he viewed 
     oral arguments in that light, considering himself to be their 
     equal, he projected the kind of confidence that he would be 
     comfortable and consider himself up to the job of Chief, who 
     is the ``first among equals.''
       I also questioned him about the role the Chief Justice 
     should play in bringing about consensus on the Court. I have 
     been troubled by the numerous 5 to 4 decisions and the 
     proliferation of concurrences and plurality opinions that 
     often leave lower courts, lawyers, and litigants wondering 
     about what the Court actually held. I therefore asked:
       ``Judge Roberts, let me [ask about] the ability which you 
     would have, if confirmed as Chief Justice, to try to bring a 
     consensus to the Court. You commented yesterday about what 
     Chief Justice Warren did on Brown v. Board of Education, 
     taking a very disparate Court and pulling the Court together. 
     As you and I discussed in my office, there are an 
     overwhelming number of cases where there are multiple 
     concurrences. A writes a concurring opinion in which B joins; 
     then B writes a concurring opinion in which A joins and C 
     joins. In reading the trilogy of cases on detainees from June 
     of 2004 to figure out what we ought to do about Guantanamo, 
     it was a patchwork of confusion. I was intrigued by the 
     comment which you made in our meeting about a dialogue among 
     equals, and you characterized that as a dialogue among equals 
     when you appear before the Court, and they are on a little 
     different level over there. Tell us what you think you can do 
     on this dialogue among equals to try to bring some consensus 
     to the Court to try to avoid this proliferation of opinions 
     and avoid all these 5-4 decisions. . . .''
       Judge Roberts responded:
       ``I . . . think . . . it's a responsibility of all of the 
     Justices, not just the Chief Justice, to try to work toward 
     an opinion of the Court. The Supreme Court speaks only as a 
     Court. Individually, the Justices have no authority. And I do 
     think it should be a priority to have an opinion of the 
     Court. You don't obviously compromise strongly-held views, 
     but you do have to be open to the considered views of your 
     colleagues, particularly when it gets to a concurring 
     opinion. I do think you do need to ask yourself, what benefit 
     is this serving? Why is it necessary for me to state this 
     separate reason? Can I go take another look at what the four 
     of them think or the three of them think to see if I can 
     subscribe to that or get them to modify it in a way that 
     would allow me to subscribe to that, because an important 
     function of the Supreme Court is to provide guidance. . . . I 
     do think the Chief Justice has a particular obligation to try 
     to achieve consensus consistent with everyone's individual 
     oath to uphold the Constitution, and that would certainly be 
     a priority for me if I were confirmed.''


                  Specter Questioning, Sept. 14, 2005

       Given the unusual combination of his qualifications and 
     experience, including extensive personal contact with the 
     other justices, he has the unique potential to bring 
     consensus to the Court and to reduce the numerous repetitious 
     and confusing opinions.
       The Judiciary Committee conducted a thorough and fair 
     confirmation hearing for Judge Roberts. He answered questions 
     before the committee for nearly 17 hours. Committee members, 
     both Democrats and Republicans, stated the hearings were 
     conducted in a fair manner with ample time for questions. 
     Although historically the majority party reserves more 
     witnesses for itself than it grants to the minority party, I 
     made the decision to break with precedent and divide the 
     number of witnesses evenly between the parties--1 neutral 
     witness from the ABA, 15 witnesses chosen by the majority, 
     and 15 witnesses chosen by the minority. This testimony, 
     combined with Judge Roberts's extensive record--76,000 pages 
     of documents from his service in the Reagan and Bush 
     administrations, 327 cases decided by Judge Roberts while on 
     the D.C. Circuit, thousands of pages of legal briefs from 
     Judge Roberts's service in the Solicitor General's Office and 
     in private practice, and dozens of articles and interviews by 
     Judge Roberts--provided the committee and now the full Senate 
     ample basis to evaluate Judge Roberts's qualifications to 
     serve as Chief Justice of the United States.
       During his hearing, Judge Roberts addressed a wide variety 
     of subjects. On the key issue of whether the Constitution is 
     a static document or one which has the flexibility to adapt 
     to changing times, he said ``they (the framers) were crafting 
     a document that they intended to apply in a meaningful way 
     down the ages.'' While he would not accept Justice Harlan's 
     language of a ``living thing,'' he testified that the 
     language of ``liberty'' and ``due process'' have broad 
     meaning as applied to evolving societal conditions.
       At the same time, however, he did not answer all the 
     questions I would have liked him to respond to. I questioned 
     Judge Roberts closely about his views with respect to 
     congressional authority to remedy discrimination under the 
     14th amendment. I asked him how the Supreme Court could 
     possibly have struck down the private remedy the Congress 
     created in the Violence Against Women Act in view of the 
     extensive congressional record, which--
     ``showed that there were reporters on gender bias from the 
     task force in 21 States and eight separate reports issued by 
     Congress and its committees over a long course of time . . . 
     there was a mountain of evidence.''


           Specter Questioning, Wednesday, September 14, 2005

       In light of that record, I asked:
       ``What more does the Congress have to do to establish a 
     record that will be respected by the Court? . . . Isn't that 
     record palpably sufficient to sustain the constitutionality 
     of the Act?''


           Specter Questioning, Wednesday, September 14, 2005

       Judge Roberts, however, declined to comment, explaining 
     that ``. . . I don't want to comment on the correctness or 
     incorrectness of a particular decision.''


           Specter Questioning, Wednesday, September 14, 2005

       Although I pushed him to answer my question, observing that 
     the case was long over, and the specific facts unlikely to 
     come before the Court again, Judge Roberts declined to answer 
     because of his view that:
     ``the particular question you ask about the adequacy of 
     findings . . . is likely to come before the Court again. And 
     expressing an opinion on whether the Morrison case was 
     correct or incorrect would be prejudging those cases that are 
     likely to come before the Court again.''


           Specter Questioning, Wednesday, September 14, 2005

       In fact, the most Judge Roberts would say is that:
     ``the appropriate role of a judge is a limited role and that 
     you do not make the law, and that it seems to me that one of 
     the warning flags that should suggest to you as a judge that 
     you may be beginning to transgress into the area of making a 
     law is when you are in a position of re-evaluating 
     legislative findings, because that doesn't look like a 
     judicial function. It's not an application of analysis under 
     the Constitution. It's just another look at findings.''


           Specter Questioning, Wednesday, September 14, 2005

       On the very important question of conflict between the 
     Congress and the Supreme Court, I was dissatisfied with his 
     responses on the Court's derogation of Congress' ``method of 
     reasoning'' and the Court's recent improvisation of the 
     meaningless ``congruence and proportionality'' standard. In 
     discussing the Americans with Disabilities Act, I pointed out 
     to him the problem of the Court issuing 5 to 4 decisions in 
     two cases

[[Page 20638]]

     with identical records going entirely opposite ways within 3 
     years. With respect to the Garrett case, where Ms. Garrett, 
     who had breast cancer, sought relief under the ADA for 
     employment discrimination, I explained:
       ``The Court in 2001 said that the title of the Disabilities 
     Act was unconstitutional, 5-4, on employment discrimination. 
     Then 3 years later, you have the case coming up of Lane, the 
     paraplegic crawling up the steps, accommodations, 5-4, and 
     the Act is upheld.''
       Yet, ``the record in the case was very extensive--13 
     congressional hearings, a task force that held hearings in 
     every State, attended by more than 30,000 people, including 
     thousands who had experienced discrimination.''
       Despite these extensive factual findings, however, the 
     Court employed the ``congruence and proportionality'' test, a 
     test Justice Scalia criticized as ``flabby,'' to strike down 
     a portion of the act.
       I asked Judge Roberts:
       ``Isn't this congruence and proportionality test, which 
     comes out of thin air, a classic example of judicial activism 
     . . .?''
       Judge Roberts acknowledged the applicable precedents, but 
     when asked whether he agreed with Justice Scalia's 
     sentiments, stated:
       ``I don't think it's appropriate in an area--and there are 
     cases coming up, as you know, Mr. Chairman. There's a case on 
     the docket right now that considers the congruence and 
     proportionality test.''
       He declined to answer the question. He did, however, state 
     that:
       ``If I am confirmed and I do have to sit on that case, I 
     would approach that with an open mind and consider the 
     arguments. I can't give you a commitment here today about how 
     I will approach an issue that is going to be on the docket 
     within a matter of months.''


             specter questioning, wednesday, sept. 14, 2005

       Although I was disappointed that Judge Roberts did not 
     answer some of my questions, still, I believe that he went 
     somewhat beyond the usual practice of answering just as many 
     questions as he had to in order to be confirmed. Many 
     nominees decline to answer if the issue could theoretically 
     or conceivably come before the Court.
       Judge Roberts, however, went further, testifying:
       ``And the great danger of courts that I believe every one 
     of the Justices has been vigilant to safeguard against is 
     turning this into a bargaining process. It is not a process 
     under which Senators get to say I want you to rule this way, 
     this way, and this way. And if you tell me you'll rule this 
     way, this way, and this way, I'll vote for you. That is not a 
     bargaining process. Judges are not politicians. They cannot 
     promise to do certain things in exchange for votes. . . . 
     Other nominees have not been willing to tell you whether they 
     thought Marbury v. Madison was correctly decided. They took a 
     very strict approach. I have taken what I think is a more 
     pragmatic approach and said if I don't think that's likely to 
     come before the Court, I will comment on it . . . it is 
     difficult to draw the line sometimes. But I wanted to be able 
     to share as much as I can with the Committee in response to 
     the concerns you and others have expressed, and so I have 
     adopted that approach.''


           schumer questioning, wednesday, september 14, 2005

       Judge Roberts explained:
       ``If I think an issue is not likely to come before the 
     Court, I have told the Committee what my views on that case 
     were, what my views on that case are.''


                  kyl questioning, september 14, 2005

       Of course, as with all nominees, there are circumstances in 
     which it would be inappropriate for Judge Roberts to take a 
     position. Since I believe it is inappropriate, for example, 
     to ask about an issue realistically likely to come before the 
     Court, I did not ask whether he would sustain or overrule Roe 
     v. Wade. Instead, I asked about his views on stare decisis, 
     or precedents, and what factors--how long ago decided, 
     stability, reliance, legitimacy of the Court--he might rely 
     on to decide whether he would vote to depart from a 
     precedent.
       In addressing his respect for stare decisis, Judge Roberts 
     explained:
       ``I would point out that the principle goes back even 
     farther than Cardozo and Frankfurter. Hamilton, in Federalist 
     No. 78, said that, `To avoid an arbitrary discretion in the 
     judges, they need to be bound down by rules and precedents.' 
     So even that far back, the Founders appreciated the role of 
     precedent in promoting evenhandedness, predictability, 
     stability, the appearance of integrity in the judicial 
     process.


                  specter questioning, sept. 13, 2005

       When I inquired about his application of these principles 
     to Roe, he noted that, ``it's settled precedent of the court, 
     entitled to respect under principles of stare decisis.'' When 
     I pressed Roberts to explain what he meant by that in the 
     context of Planned Parenthood of Southeastern Pennsylvania v. 
     Casey, where the Court said: ``that to overrule Roe would be 
     a `surrender to political pressure,' and `would subvert the 
     Court's legitimacy,''' he explained that ``as of 1992, you 
     had a reaffirmation of the central holding in Roe. That 
     decision, that application of the principles of stare 
     decisis, of course, itself a precedent that would be entitled 
     to respect under those principles.''
       I called Judge Roberts' attention to the fact that Casey 
     had been labeled a super-precedent because different judges 
     had reaffirmed Roe after almost two decades. I then suggested 
     that, since the Supreme Court did not overrule Roe when it 
     had the opportunity to do so in 38 subsequent cases, it was 
     entitled to classification as a ``super-duper precedent.'' 
     Again, he was noncommittal.
       Judge Roberts consistently reiterated his commitment to 
     modesty in the law and the importance of stare decisis by 
     explaining:
       ``I do think that it is a jolt to the legal system when you 
     overrule a precedent. Precedent plays an important role in 
     promoting stability and evenhandedness. It is not enough--and 
     the Court has emphasized this on several occasions--it is not 
     enough that you may think the prior decision was wrongly 
     decided.''


           Specter Questioning, Wednesday, September 14, 2005

       Notwithstanding his answers and my efforts to glean some 
     hint or realistic expectation from his words and body 
     language, candidly it is not possible to predict or have a 
     solid expectation of what Judge Roberts would do. If there is 
     a rule on expectations, it is probably one of surprise. 
     Professor Charles Fried, a professor of constitutional law at 
     Harvard Law School who thought Roe was wrongly decided, 
     testified that he did not think Judge Roberts would or should 
     vote to overrule Roe.
       The Washington Post editorial of September 15 had some 
     comfort from Judge Roberts' testimony:
       ``While he declined to address the merits of Roe v. Wade, 
     he did indicate that it is a decision to which stare decicis 
     consideration properly apply. Importantly, he said several 
     times that the subsequent decisions in Planned Parenthood v. 
     Casey which reaffirmed Roe's core principle--was 
     independently entitled to be treated as a precedent. That 
     implies that there would be a heavy burden for the court in 
     upsetting abortion rights now.''
       Nevertheless, Judge Roberts did engage the committee on 
     several important related issues. With respect to the right 
     of privacy, for example, I asked him directly:
       ``Do you believe that the right to privacy--do you believe 
     today that the right to privacy does exist in the 
     Constitution?''
       Roberts was forthright in his response, declaring:
       ``Senator, I do. The right to privacy is protected under 
     the Constitution in various ways . . . the Court has, with a 
     series of decisions going back 80 years that personal privacy 
     is a component of the liberty protected by the Due Process 
     Clause.''


          Response to Specter Questioning, September 13, 2005

       Similarly, in response to Senator Biden, who asked the 
     pointed question: ``Do you agree that there is a right of 
     privacy to be found in the Liberty Clause of the 14th 
     Amendment?'' Roberts responded:
       ``I do, Senator. . . . Liberty is not limited to freedom 
     from physical restraint. It does cover areas . . . such as 
     privacy, and it's not protected only in procedural terms but 
     it is protected substantively as well.''


                 Biden Questioning, September 13, 2005.

       In fact, Judge Roberts was unequivocal in his support for a 
     right of privacy, asserting that:
       ``I believe that the liberty protected by the Due Process 
     Clause is not limited to freedom from physical restraint, 
     that it includes certain other protections, including the 
     right to privacy.''


                 Biden Questioning, September 14, 2005.

       But Judge Roberts did not limit himself to finding simply a 
     general right to privacy. He also testified as to his 
     commitment to Griswold v. Connecticut. Senator Kohl, in 
     particular, asked:
       ``Judge, the Griswold v. Connecticut case guarantees that 
     there is a fundamental right to privacy in the Constitution 
     as it applies to contraception. Do you agree with that 
     decision and that there is a fundamental right to privacy as 
     it relates to contraception? In your opinion, is that settled 
     law?''
       Judge Roberts explicitly stated:
       ``I agree with the Griswold Court's conclusion that marital 
     privacy extends to contraception and [the] availability of 
     that.''


                 Kohl Questioning, September 13, 2005.

       He did not limit his understanding of the privacy right 
     merely to Griswold, however. Senator Feinstein asked:
       ``Do you think that right of privacy that you are talking 
     about [in Griswold] extends to single people as well as 
     married people?''
       In response, Judge Roberts stated his agreement with the 
     Eisenstadt case, which provided protection to unmarried 
     couples as well as those who are married.


               Feinstein Questioning, September 14, 2005

       Roberts explained further his support for the Voting Rights 
     Act, observing that the right to vote is a ``fundamental 
     constitutional right,'' in his words:
       ``preservative . . . of all the other rights. Without 
     access to the ballot box, people are not in the position to 
     protect any other rights that are important to them. And so I

[[Page 20639]]

     think it's one of, as you said, the most precious rights we 
     have as Americans.''


                Kennedy Questioning, September 13, 2005

       He acknowledged that the Voting Rights Act had advanced the 
     rights of minorities. He explained that:
       ``I think the gains under the Voting Rights Act have been 
     very beneficial in promoting the right to vote, which is 
     preservative of all other rights.''


                 Feingold questioning, Sept. 13, 2005.

       He also underscored his belief in the constitutionality of 
     the Voting Rights Act, explaining in response to Senator 
     Kennedy that ``the existing Voting Rights Act, the 
     constitutionality has been upheld . . . and I don't have any 
     issue with that.''


                Kennedy Questioning, September 13, 2005

       Moreover, when Senator Leahy asked Judge Roberts whether he 
     believed that individuals should be allowed to sue State 
     governments to remedy illegal conduct, Judge Roberts 
     confirmed that he would not take a narrow or crabbed view of 
     individuals' rights.
       Judge Roberts explained that the best place to look for his 
     views was not the briefs he filed on behalf of clients, but 
     his decisions as a judge:
       ``I did have occasion as a judge to address a Spending 
     Clause case. It was a case called Barber v. Washington 
     Metropolitan Area. . . . . I ruled that the individual did 
     have the right to sue.''


                 Leahy Questioning, September 15, 2005

       Those individuals, it should be noted, sued Washington, DC 
     for discriminating against them based on their disabilities, 
     and Judge Roberts affirmed their right to sue in the face of 
     a dissent by a conservative panel member.
       Moreover, demonstrating a sensitivity to the ``real world'' 
     problems of race, Judge Roberts expressed his agreement with 
     the approach taken by Justice O'Connor's opinion for the 
     Court in upholding an affirmative action program employed by 
     a university in its admissions policy, explaining that he 
     agreed that it is vital ``to look at the real-world impact in 
     this area [the area of affirmative action in university 
     admissions], and I think in other areas, as well.''


                Kennedy Questioning, September 14, 2005

       Judge Roberts further reaffirmed his support for minority 
     outreach programs that are designed to guarantee equal 
     opportunity for all:
       ``A measured effort that can withstand strict scrutiny is, 
     I think, affirmative action of that sort, I think, is a very 
     positi[ve] approach. . . . efforts to ensure the full 
     participation in all aspects of our society by people without 
     regard to their race, ethnicity, gender, religious beliefs--
     all of those are efforts that I think are appropriate. . . . 
     beneficial affirmative action to bring minorities, women into 
     all aspects of society. That's important, and as the Court 
     has explained, we all benefit from that.''


               Feinstein Questioning, September 14, 2005

       Judge Roberts also cast aside any question about his 
     commitment to civil rights for all Americans. In commenting 
     on Congress's authority under the 14th amendment to remedy 
     discrimination, Judge Roberts expressly stated that he 
     believes Congress has the power to guarantee civil rights for 
     all. In response to Senator Kennedy's question: So do you 
     agree with the Court's conclusion that the segregation of 
     children in public school solely on the basis of race is 
     unconstitutional?'' Roberts responded: ``I do.''


                Kennedy Questioning, September 13, 2005

       And, when asked by Kennedy: ``Do you believe that the Court 
     had the power to address segregation of public schools on the 
     basis of the Equal Protection Clause of the Constitution?'' 
     Roberts again responded, ``Yes. . . .''

                Kennedy Questioning, September 13, 2005

       Judge Roberts, in his pro bono work, further demonstrated 
     his evenhandedness. I questioned him about his participation 
     in Romer v. Evans, which involved alleged discrimination on 
     the basis of sexual orientation:
     ``Where you gave some advice on the arguments to those who 
     were upholding gay rights, and a quotation by Walter Smith, 
     who was the lawyer at Hogan & Hartson in charge of pro bono 
     work. He had this to say about your participation in that 
     case supporting or trying to help the gay community in a case 
     in the Supreme Court. Mr. Smith said, `Every good lawyer 
     knows that if there is something in his client's cause that 
     so personally offends you, morally, religiously, or if it so 
     offends you that you think it would undermine your ability to 
     do your duty as a lawyer, then you shouldn't take it on, and 
     John'--referring to you--`wouldn't have. So at a minimum he 
     had no concerns that would rise to that level.' Does that 
     accurately express your own sentiments in taking on the aid 
     to the gay community in that case?''
       Judge Roberts responded that:
       ``I was asked frequently by other partners to help out 
     particularly in my area of expertise, often involved moot 
     courting, and I never turned down a request. I think it's 
     right that if it had been something morally objectionable, I 
     suppose I would have, but it was my view that lawyers don't 
     stand in the shoes of their clients, and that good lawyers 
     can give advice and argue any side of a case. And as I said, 
     I was asked frequently to participate in that type of 
     assistance for other partners at the firm, and I never turned 
     anyone down.''


               Specter Questioning, Tuesday, September 13

       In addition, Judge Roberts provided a thorough discussion 
     of a much debated issue of the day--judges' use of foreign 
     law in interpreting the U.S. Constitution. Judge Roberts 
     stated, ``a couple of things . . . cause concern on my part 
     about the use of foreign law . . . as precedent on the 
     meaning of American law.'' Judge Roberts explained:
       ``The first has to do with democratic theory. . . . If 
     we're relying on a decision from a German judge about what 
     our Constitution means, no President accountable to the 
     people appointed that judge, and no Senate accountable to the 
     people confirmed that judge, and yet he's playing a role in 
     shaping a law that binds the people in this country. I think 
     that's a concern that has to be addressed. The other part of 
     it that would concern me is that relying on foreign precedent 
     doesn't confine judges. It doesn't limit their discretion the 
     way relying on domestic precedent does. . . . In foreign law 
     you can find anything you want. If you don't find it in the 
     decisions of France or Italy, it's in the decisions of 
     Somalia or Japan or Indonesia or wherever. As somebody said 
     in another context, looking at foreign law for support is 
     like looking out over a crowd and picking out your friends. 
     You can find them, they're there. And that actually expands 
     the discretion of the judge. It allows the judge to 
     incorporate his or her own personal preferences, cloak them 
     with the authority of precedent because they're finding 
     precedent in foreign law, and use that to determine the 
     meaning of the Constitution. I think that's a misuse of 
     precedent, not a correct use of precedent.''


                    kyl questioning, sept. 13, 2005

       Most importantly, Judge Roberts's answers demonstrated that 
     he would take a fair, non-ideological approach to the law. As 
     Judge Roberts explained:
       ``The ideal in the American justice system is epitomized by 
     the fact that judges, Justices, do wear the black robes, and 
     that is meant to symbolize the fact that they're not 
     individuals promoting their own particular views, but they 
     are supposed to be doing their best to interpret the law, to 
     interpret the Constitution, according to the rule of law, not 
     their own preferences, not their own personal beliefs.''


                  kohl questioning, september 13, 2005

       I think it important that Judge Roberts condemned judicial 
     activism of all stripes, from the left and the right. I found 
     it telling that when asked for an example of ``immodesty'' in 
     judging, Judge Roberts began with an example of conservative 
     judicial activism:
       ``I would think the clearest juxtaposition would be the 
     cases from the Lochner era. If you take Lochner on the one 
     hand and, say, West Coast Hotel, which kind of overruled and 
     buried the Lochner approach on the other, and the immodesty 
     that I see in the Lochner opinion is in its re-weighing of 
     the legislative determination. You read that opinion, it's 
     about limits on how long bakers can work. And they're saying 
     we don't think there's any problem with bakers working more 
     than 13 hours. . . . Well, the legislature thought there was, 
     and they passed a law about it, and the issue should not have 
     been, Judges, do you think this was a good law or do you 
     think bakers should work longer or not? It should be: Is 
     there anything in the Constitution that prohibits the 
     legislature from doing that?


                schumer questioning, september 14, 2005

       This is a view, I should note, echoed in the work of a 
     young John Roberts of nearly 24 years ago. In November 1981, 
     Judge Roberts wrote that judicial activism is ``a concern 
     that does not depend upon political exigencies.'' The young 
     John Roberts pointed to Lochner and explained, ``The evils of 
     judicial activism remain the same regardless of the political 
     ends the activism seeks to serve.'' [Document AG7-5508]
       Unlike Justice Scalia, who declined even to opine on 
     Marbury v. Madison, Judge Roberts not only reaffirmed his 
     commitment to Marbury, but also indicated his support for the 
     seminal Commerce Clause case of Wickard v. Filburn.
       In response to questioning by Senator Schumer, Judge 
     Roberts stated that Wickard ``was reaffirmed in the Raich 
     case and that is a precedent of the court, just like Wickard, 
     that I would apply like any other precedent. I have no agenda 
     to overturn it. I have no agenda to revisit it. It's a 
     precedent of the Court.''


                  schumer questioning, sept. 13, 2005.

       Nevertheless, I was not wholly persuaded by Judge Roberts' 
     explanation in seeking to distance himself from memoranda 
     which he had written as an Assistant to Attorney General 
     William French Smith or as an Associate White House counsel 
     in the Reagan Administration.
       My overall impression of Judge Roberts is that he has grown 
     considerably in the intervening twenty years. Phyllis 
     Schlafly, President of the conservative Eagle Forum, 
     characterized that potential growth from his youthful 
     position that women should be

[[Page 20640]]

     homemakers instead of lawyers. Ms. Schlafly characterized 
     that as a smart-alecky comment from a young bachelor who 
     hadn't seen a whole lot of life at that point. The fact that 
     Judge Roberts is now married to a successful lawyer, who is a 
     homemaker as well, demonstrates a different current view.
       In any event, I conclude that Judge Roberts is a very 
     different man today than he was when he wrote the early 
     memoranda and that a more appropriate way of evaluating him 
     would be on the basis of his 45 opinions and 4 concurrences 
     in two years on the Circuit Court, the extensive testimony he 
     gave, and the insights of the many witnesses who have known 
     him intimately over the intervening years.
       The subtle minuet of the confirmation hearing for Judge 
     Roberts turned bombastic and confrontational at times, but he 
     kept his cool and responded within reasonable parameters. The 
     Judiciary Committee and the full Senate cannot be guarantors 
     that Judge Roberts will fulfill ours or anyone's 
     expectations. The Court's history is full of justices who 
     have surprised or disappointed their appointers or 
     inquisitors.
       But the process has been full, fair and dignified. On some 
     questions, Judge Roberts, as the song about the Kansas City 
     burlesque queen in the stage play ``Oklahoma'' says: ``She 
     (he) went about as far as she (he) could go'' without 
     committing himself to votes on cases likely to come before 
     the court. When all the facts are considered, my judgment is 
     that Judge Roberts is qualified, has the potential to serve 
     with distinction as Chief Justice and should be confirmed. I 
     will vote ``yea.''

  Mr. SPECTER. I thank the Chair, yield the floor, and, in the absence 
of any Senator seeking recognition, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. DeWine). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. COCHRAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________